Raisin v. Shoemaker — 238 N.Y. 630

Majority

p. 630

Solomon Raisin, Respondent, v. Edgar Shoemaker, Appellant.

Headnote

Lease —■ action to recover damages for failure to give possession of alleged leased premises.

Raisin v. Shoemaker, 206 App. Div. 122 , affirmed.

(Submitted June 5, 1924;

decided July 5, 1924.)

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1923, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a.Trial Term and granting a new trial. The action was brought by the plaintiff to recover of the defendant damages alleged to have been sustained by the plaintiff by reason of being deprived of a leasehold estate, which it was alleged the defendant essayed to convey to the plaintiff by the following instrument:

“ The undersigned in consideration of the sum of $491.55, the receipt of which from Solomon Raisin is hereby acknowledged, does hereby agree to give him a lease of premises situate at the southeast corner of

p. 631

Prospect Avenue and 163 St., Borough of Bronx, and known as 926 Prospect Ave., in all respects similar to the lease made on the 28th day of February, 1919, between Gertrude H. Fink, Lucy A. Heister and Walter J. Heister, as landlord, and Morris Fine and Kopl Gottlieb, as tenant, except that the term thereof shall be for a period from Jan. 1, 1920, to April 30, 1922, and all the other terms, covenants and conditions of said lease are hereby made part of this agreement and specifically referred to.

“ Dated, New York, December 9, 1919.

“ EDGAR SHOEMAKER

“ By Louis Greenberg

“ The above agreement is hereby accepted.

“ SOLOMON RAISIN.”

Louis Susman for appellant.

Charles S. Rosenschein and Robert Moers for respondent.

Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts on the ground that the instrument of December 9, 1919, known as plaintiff’s Exhibit 7, was an agreement to give a lease of the premises 926 Prospect avenue and was not a lease; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.